Dealing with pesky mechanic's liens.One of the biggest thorns in the side of building owners and co-op apartment buildings is what to do about mechanic's liens A charge or claim upon the property of another individual as security for a debt that is created in order to obtain priority of payment of the price or value of work that is performed and materials that are provided in the erection or repair of a building or other structure. . There are steps owners can take to get rid of them quickly, but it is a contractor's right to file them, and they are filed routinely. It is common for a building owner to look at a lien and shout "How can he (the contractor) get away with this? I don't owe him that much money?" When I counsel clients on this subject, I always tell them that the clerk who files the lien does not make the contractor swear that the information in the lien is true. If the mechanic's lien appears to have all the spaces filled in properly and it is signed and notarized, then it is put on record. The courts deal with inaccuracies and inflated figures in the lien in other ways. Most building owners are savvy enough to insert clauses in work letters or in building alteration agreements, in the case of co-ops, requiring tenants and shareholders to have liens removed at their cost and expense. If they do not do so, the building owner may take steps to remove it and bill the tenant or shareholder for the time spent. However, there are other more subtle things about mechanic's liens that many owners do not realize. For example, a building owner may know with absolute conviction that a lien is grossly exaggerated, but that is not a basis for vacating the lien. The grounds for vacating a lien have to do with technicalities, such as naming the wrong owner or listing the wrong address. If these mistakes are caught quickly, an amended lien can be filed. If they are not and the time for filing a lien passes, the contractor may lose its right to file a lien. Interior designers and unlicensed architects cannot file mechanic's liens. Occasionally they are able to get them filed because the clerk may think it sounds like work a contractor has done. This is rare. Another subtle point is that contractors who do not have home improvement contractor's licenses may not file mechanic's liens. Of course, they will be accepted for filing, but an attorney who knows construction law will be able to get it vacated. A further complication can occur when the architect or contractor wants to litigate the amount owed. If the contract for the work has an arbitration clause, then the case becomes bifurcated bi·fur·cate v. bi·fur·cat·ed, bi·fur·cat·ing, bi·fur·cates v.tr. To divide into two parts or branches. v.intr. To separate into two parts or branches; fork. adj. . The foreclosure foreclosure Legal proceeding by which a borrower's rights to a mortgaged property may be extinguished if the borrower fails to live up to the obligations agreed to in the loan contract. of the mechanic's lien is handled trough the court system. The underlying contract issues are handled by arbitration. On a practical level, the court case is usually stayed to allow the arbitration to proceed to conclusion. The award from the arbitration is then confirmed by the court and that resolves the lien issues. I have seen attorneys who do not know this area of the law spend many hours on issues where they were barking up the wrong tree. For example, while there is a provision in the law for suing for treble damages A recovery of three times the amount of actual financial losses suffered which is provided by statute for certain kinds of cases. The statute authorizing treble damages directs the judge to multiply by three the amount of monetary damages awarded by the jury in those cases for a "willfully willfully adv. referring to doing something intentionally, purposefully and stubbornly. Examples: "He drove the car willfully into the crowd on the sidewalk." "She willfully left the dangerous substances on the property." (See: willful) exaggerated lien," it may involve pouring more money into a dead-end issue. Any time one has to prove that a party "willfully" did something, it is an uphill battle Uphill Battle was an metalcore band with elements of grindcore and noisecore. The group was based out of Santa Barbara, California, USA. History Uphill Battle got some recognition releasing their self-titled record on Relapse Records. . If a contractor has an "arguable ar·gu·a·ble adj. 1. Open to argument: an arguable question, still unresolved. 2. That can be argued plausibly; defensible in argument: three arguable points of law. " basis for claiming that he should be paid $60,000 for extras, the owner will likely not prevail on a willful exaggeration claim. The court will feel the contractor had a reasonable basis for such a claim based on the facts. It pays to work with counsel that knows this area of the law so that your litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute. When a person begins a civil lawsuit, the person enters into a process called litigation. dollars are directed at the most important issues. (C. Jaye Berger of Law Offices of C. Jaye Berger is an attorney in New York City New York City: see New York, city. New York City City (pop., 2000: 8,008,278), southeastern New York, at the mouth of the Hudson River. The largest city in the U.S. who specializes in building construction, real estate, environmental law, bankruptcy and litigation. The firm represents a number of owners, contractors, architects, and interior designers. Berger has written a book about hazardous substances in buildings, which was published by John Wiley John Wiley may refer to:
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